The Rights Stuff

Jewish Light Editorial

“I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement,” (United States Supreme Court Justice Antonin) Scalia said. “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

That was Scalia in February oral arguments about a 2006 extension of Voting Rights Act provisions that kept some Southern states under a pre-clearance requirement for election changes.

Fast forward a month to the Court’s arguments on two laws that in different ways defended heterosexual-only unions: California’s Proposition 8 and the federal Defense of Marriage Act (DOMA).

Given his sentiments on the Voting Rights Act, perhaps you expected Scalia to support gay marriage under the same rationale, as follows:


“I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of heterosexual entitlement. Whenever a society adopts heterosexual entitlements, it is very difficult to get out of them through the normal political processes.”

Um, that didn’t happen. We’re guessing you knew that.

The two laws now before the Court arrived under different circumstances. Prop 8 was a voter-adopted statute from referendum-crazy California (remember Prop 13, that state’s precursor to Missouri’s Hancock Amendment?). It stated that the only legitimate marriage is one between man and woman. Both lower courts struck down the law en route to the Court.

DOMA is a federal law passed by Congress and signed by President Bill Clinton in 1996. Among other things, it precludes same-sex marriage partners from receiving their spouse’s employee insurance benefits and Social Security survivors’ benefits, and filing joint tax returns. Eight courts have struck down the provision as unconstitutional, President Barack Obama’s administration has refused to defend it, and Clinton has admitted the law should be rescinded.

As the political groundswell in support of gay marriage continues, and with explicitly religious grounds not allowed as a divider, it is becoming increasingly hard for courts to muster a legitimate legal analysis to let states or the feds discriminate.

Indeed, the Court hearings proved this out with challenges based on non- substantive grounds. Chief Justice John Roberts cut in with questions almost from the start about whether the plaintiffs in the Prop 8 case even had judicial standing to raise the issues. It may well be that the majority finds a way out of ruling on Prop 8’s provisions by simply saying the Court should never have taken the case in the first place.

Beyond those kinds of procedural claims, however, the arguments in defense of the California statute or DOMA are looking more and more specious. Take, for instance, Scalia’s acerbically phrased question posed to attorney Theodore Olson, co-lead counsel challenging Prop 8, and Olson’s stinging rebuke:

Scalia: “We don’t prescribe law for the future. We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?…When, when, when did the law become this?”

Olson: “May I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”

Scalia’s only retort was a weak, “Don’t give me a question to my question,” suggesting that, in essence, he may have had no answer at all. And indeed, without a procedural “out” available on DOMA, and with swing Justice Anthony Kennedy casting doubt on its validity during questioning, DOMA may well be struck down.

The country is rapidly moving past this issue. Some polls suggest a majority of Americans support the concept, nine states explicitly sanction it, and traditionally conservative ranks are seeing splinters from those of a more libertarian bent. Young adults overwhelmingly support equal rights in marriage, and so our next generation of leaders doesn’t even understand what the fuss is about.

It’s true that over half the states, including ours, have adopted laws limiting marriage to hetero couples, and if the Court ducks the substantive issues on Prop 8 by tossing it on procedural grounds, it may delay the ultimate question of what happens to other states’ laws that limit individuals’ rights to marry.

We disagreed with Scalia’s words in questioning the Voting Rights act, but we at least hope he understands his words at that time should serve as a guide in ruling on the Prop 8 and DOMA cases. While religions can choose which unions to honor within the confines of their beliefs, morals and traditions, government may not. Under the law, there is no legitimate basis for discrimination in determining which couples are allowed to wed and share the benefits accorded married couples.